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Calgary Family Law Blog

Declining marriage rates signal family law trends

There are many different types of families in Alberta, but unmarried or "common-law" couples seems to particularly be on the rise. Recently, Statistics Canada verified this trend. According to the General Social Survey (GSS), three-quarters of Canadian adults 25 to 64 cohabit with a partner but that a decreasing number of these couples are legally married. There are many family law implications in this trend, including managing divorce while one or both spouses are cohabiting with another partner and the rights of common law couples if a relationship dissolves.

According to the statistics, there are 19.9 million people aged 25 to 64 living in Canada in 2017. The majority, 56%, said they were married while 15% reported being in a common-law relationship. The 2016 census showed 21.3% of all couples over all age groups were in common-law relationships. This is more than triple the number reported in 1981, which was 6.3%

Understanding the basics of divorce mediation

When Alberta couples decide to end their marriages, there are often many issues to resolve. This can include custody, spousal support and asset distribution. For many families, divorce mediation is the most constructive and cost-effective option. But how does this really work in practice?

Typically, divorce mediators are lawyers who also have mediation training. This means they can help both with negotiating an agreement and manage many of the legal complexities involved in the process. Couples can also have their own lawyers attend the mediation if they choose, but should refrain from involving family or friends. 

Family law: Protecting assets going into a serious relationship

When a relationship gets serious a couple -- who are very often in a honeymoon phase -- might decide to take things to the next level. That may mean living together. There are family law rules in Alberta that can assist each individual in making decisions when it comes to protecting his or her assets within a serious relationship. After all, those assets may be handed down to a person's children one day.

If couples choose to live together, they may wish to consider having a cohabitation agreement in place -- much like a prenuptial agreement for those who are getting married. If parents are helping a cohabiting couple to buy a home with a downpayment, this is something that also should be considered in the protection of assets. Couples should be aware of the laws that protect them and where they may be vulnerable.

Famiy law: When a spousal support payor's income increases

Individuals receiving spousal support may be cheering when their former spouses get substantial pay raises. Increasing the amount of spousal support after a payor gets a raise is one of the most contentious, litigated issues in family law in Canada. Spousal Support Advisory Guidelines are used in Canada to determine the duration and what the amount of spousal support should be.

A recent litigated case in Canada involved a former 17-year-marriage. At the time the agreement was made in 2003, the husband, who is the payor, was earning $185,000, while his former wife was unemployed. The man agreed to pay his former wife $1,400 a month in support with a review in 2007. Three years ago, the husband applied to court to have his support terminated, but his former wife wanted the amount increased retroactive to 2007 when the amount should have been reviewed, but wasn't. By this time, the man's income has burgeoned to more than $1 million annually.

Family law: When one parent takes the children without consent

Compromising over child visitation is something many divorced or separated parents often find difficult. Family law in Alberta stipulates that children do better when they can have both parents in their lives, but when one parent leaves the country with his or her children without the permission of the other, it's not only devastating, but it is against the law. Some parents won't abide by the rules and when international borders are involved in child custody matters, and things can get complicated. 

Child abductions that involve international borders are on the rise. Often, it is one parent who takes the children where he or she will not be accessible to the other parent. It's more prevalent in Canada than one would imagine. In fact, currently there are more than 185 of these cases being investigated by Global Affairs Canada. 

Family law dispute: Domestic violence in Alberta

Divorce can bring out the worst in couples. Many a family law dispute in Alberta has centred around domestic violence, which increases not only the stress level in the partner on the receiving end of such violence, but of any children involved. In its 2013 report Statistics Canada (StatsCan) said that there are more than 252 domestic violence victims for every 100,000 residents in the country, which translates to 26 per cent of violent actions involving spouses or common law partners. 

Violence involving spouses is an indicator children may be involved in abuse situations as well. Even if children are not directly abused, they can suffer when they see one parent being abusive to another. Family court will look at the variables at play in domestic abuse situations including the impact it has on children. Family court judges first started making decisions on child custody issues using the domestic violence yardstick in the late 1980s. Most family law legislation in Canadian provinces now includes references to domestic violence.

The importance of positive co-parenting in the family law process

The mental health of children going through divorce often hinges on how well their parents are co-parenting them. The family law process in Canada looks at what is in the best interests of children and that includes supporting their children through difficult times. Parenting in two individual homes might not be an easy feat, but when parents agree to put their children first, it could be much less stressful, even when parents are going through their own difficulties.

When parents denigrate each other in the presence of their kids, the kids feel the backlash. The children could also feel the guilt associated with wanting to defend the other parent. It could affect a child's self-confidence and sense of security, which could lead to otherwise untoward behaviour. Being abrasive in such circumstances may be counter-productive. Instead, psychologists suggest parents work on healing their own issues so they can help their kids to do the same.

Honouring family law orders from other areas

When people get divorced, they no longer have to answer to each other and can live anywhere they please. However, if they share children and one parent lives out of province, they should know that they're not off the hook when it comes to child support and other issues. Alberta is part of what is known as the Interjurisdictional Support Orders Act which gives it the right to change, enforce and recognize family law orders from other provinces, territories and certain countries. 

For instance, if one parent lives in Alberta and another lives in another province or country that has opted into the law and the parent in Alberta wishes to file an application for a child support order on the out-of-province parent, he or she can do so in an Alberta court. If a judge agrees, a provisional order will be issued and sent to the jurisdiction in which the other parent resides. A judge there will review the order and the parent will be notified and a judge will make the decision whether to grant the order, issue an interim order, send the order back for more evidence or refuse to grant the order. This can also work in reverse -- a parent in another province or country may issue an order against a parent living in Alberta.

Family law: Staying together while miles apart

There is no one way to describe a family in the 21st century. The family dynamic can be as individual as the people making up the family unit. Legally, the family dynamic in Alberta is governed by family law, and there are certain criteria that need to be upheld like always doing what is in the best interests of children; however, that doesn't always mean a family is located under one roof all the time. 

In fact, according to Statistics Canada, more than a million adults are not living with the person with whom they're in a relationship and many of those are long-term relationships. The incidents of living apart together (LAT) couples as they're called, has risen by 3 per cent in Canada over the last 10 years. What is most interesting is that most of those couples live just about 20 kilometers from each other. 

Collaborative law may be the answer for some Alberta couples

Going to court is not pleasant under any circumstances. A divorcing Alberta couple who would like to stay away from the litigation process may wish to investigate how the collaborative law process may be able to help them to reach decisions on issues that have been problematic. Couples involved in the collaborative divorce process sign agreements that they will be transparent and forthright in the bargaining process to try to keep their cases from going to court.

Each individual has his or her own lawyer who will negotiate in good faith. Others may also be called upon to help such as accountants and family therapists. Negotiations take place with the aim of finding solutions that are mutually agreeable and that benefit everyone. Ground rules are laid out so a couple can stay within boundaries set for negotiating.

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